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MEMOIR 



OF THE 



HON. WILLIAM WHITING, LL.D. 



Reprinted from the Historical and Genealogical 

Register for JuLf , 1874. 



BOSTON: 
FOR PRIVATE DISTRIBUTION. 

1874. 



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HARVARD COLLEGE LIBRARY 

FROM 

THE BEQUEST OF 

EVIRT JANSEN HINBftU 

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FIFTY COPIES. 



Press of Datid Clapp & Son, 
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MEMOm OF WILLIAM WHITING. 



* • T)n'ILLIAM WHITING was bora in Concord, March 3, 1813. 

He was a descendant from the Rev. Samuel Whiting, D.D., 
an eminent non-conformist minister in his day, who came to this 
country in 1636, from Lincolnshire, England, where he was bom, 
and was in early life settled first as rector of Lynn Regis, and after- 
ward as rector of the parish at Skirbeck, near Boston. The old 
church in which he ministered at Skirbeck is said to be still standing, 

( surrounded by the graves of his long-departed parishioners. Late 

in the year of his coming to Massachusetts (November, 1636), Mr. 
Whiting became the minister of the first church in Lynn,* and re- 
mained in that relation till 1679, when he died, universally lamented 
and honored, at the age of eighty-two years. He was one of the 
great lights of his time, and his descendants for seven generations, 
in many branches of useful and honorable service, have well pre- 
served the traditions of his family. 

Nor should we omit in this connection honorable mention of his 
wife, Elizabeth St. John Whiting, daughter of Sir Oliver St. John, 



* " Y« towne was called Lfn, in compliment to Mr. Whiting, who came here from Lin 
(Lynn Regis) in old Norfolke. Before, wee were called Saugust, wch wee did not mch 
like, some nicknameing vs Sawdust. Most thot y« name a good one, tho some woald have 
it yt it was too short. But to puch wee said, then spell it Lynne. Y® change was made 
fortie yeare and more agone [1637] and none now find fault." — Journal of Obadiah Turner , 
pp. 86-88. 



Knt., and sister of Oliver, Lord Chief Justice of the Common Pleas 
of England. She is described as remarkable for beauty, dignity, a 
commanding presence, and endowed with an education which in those 
days was rare among women. Even in her old age, and under mar- 
vellously changed circumstances, she did not lose her youthful fond- 
ness for the great poets of England, Chaucer, Spencer, Shakspeare, 
and others, with whose works her husband's library at Lynn was 
stored. Though brought up in affluence, and connected by many 
ties with the lords of the realm, she early fell into sympathy with 
those who questioned the king's prerogatives, and who were soon to 
become the lords of the Commonwealth. When her husband's 
thoughts were turned toward New-England, she, — ^not of course 
without deep regrets, but with the pride and zeal of a high-spirited 
woman, — forwarded his plans and cheerfully shared in all his en- 
deavors. During the time of her residence in Lynn, her house be- 
came famous for its hospitality, and she was the friend and companion 
of many of the leading persons in the colony, whom she often en- 
tertained as guests, but without neglecting the daily duties which 
were a part of her life. No lady ever came to these colonies of 
higher lineage, of more elegant culture, or of more lovely and 
christian character.* 

The subject of this memoir was the son of Colonel William Whit- 

' Cotton Mather, in his '* Ma^alia ** (vol. i. p. 503), thus speaks of her father and her- 
self: He (Mr. Whiting) married the daughter of Mr. Oliver St. John, a Bedfordshire 
gentleman, of an honorable family, nearly related unto the Lord St. John of Bletso. This 
Mr. St. John was a person of incomparable breeding, rirtue and piety; such that Mr. 
Cotton, who was well acquainted with him, said of him: "He is one of the completest 
gentlemen, without affectation, that he ever knew; and this his daughter was a person of 
singular piety and gravity, one who by her discretion freed her husband from all secular 
avocations, one who upheld a daily and constant communion with God in the devotions of 
her closet, one who not only wrote the sermons that she heard on the Lord's days with 
much dexterity, but lived them; and lived on them all the week. The usual phrase among 
the ancient Jews for an excellent woman was, ' one who deserves to marry a priest* Even 
such an excellent woman was now married unto Mr. Whiting." She died March 3, 1677, 
aged 72 years.— Whiting Memoir, 151-2. 



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ing and Hannah Conant Whiting, of Concord. He pursued his pre- 
paratory studies at the Concord Academy, and gi'aduated at Harvard 
College in 1833, in the class with Professors Bo wen, Lovering and 
Torrey, the Rev. George E. Ellis, D.D., Doctors Morrill and Jef- 
fries Wyman, and others who have become eminent in science and 
the learned professions. He received the degree of Master of Arts, 
in course, in 1836, and the degree of Bachelor of Laws from the 
Cambridge Law School in 1838 ; and was admitted to the bar of 
Massachusetts to practise in the courts of the United States in 
October of that year. 

He was gifted with a clear and penetrating intellect, which, united 
with great industry, and an uncommon faculty for grasping and 
analyzing details, enabled him to achieve distinction in his profession, 
and made him an authority in the departments to which his attention 
was specially devoted. In the old Court of Common Pleas, — the 
field of his earlier practice, — ^he had an amount and variety of busi- 
ness hardly surpassed by any of his competitors, who sometimes gave 
the name of "Whiting's Court" to that respectable tribunal. 

He soon, however, became interested in more important questions, 
which took him into the higher courts of this and other states and of 
the United States. His early successes, grounded upon a thorough 
mastery of his cases, and a complete knowledge of their details, as 
well as of the principles involved in them, had already given him an 
assured position in his profession, and secured to him a lucrative and 
varied practice. But his chief eminence as a lawyer was attained 
subsequently from his success in important suits, involving large in- 
terests, arising under the patent laws, to which the later years of his 
active professional life were devoted. In undertaking suits of this 
nature, he studied not only the legal questions on which it was sup- 



6 

posed they would turn, but he explored to theh* most minute me- 
chanical details the application and operation of the patents he was 
defending or contesting, until he was able to instruct his clients upon 
practical defects in their inventions as well as upon the law. He 
acquired in this way the absolute confidence of clients, and established 
a reputation as a patent lawyer, surpassed by very few, if by any, 
who are now living. 

Mr. Whiting was never so absorbed in his profession as to lose his 
inherited interest in public questions. His father was one of the 
early and uncompromising abolitionists of New-England. When the 
great crisis of the nation was approaching, Mr. Whiting was espe- 
cially interested in the legal and constitutional questions which the 
monstrous pretensions of that system forced into prominence. In 
private communications and public addresses, just before and after 
the beginning of the war, he showed how earnestly he had grappled 
with, and how thoroughly he had explored the great crucial questions 
of the hour. He was among the first, almost the first among lawyers, 
to claim that the United States had, under the constitution, full bel- 
ligerent rights against those who inhabited the states in rebellion, — 
among which were the rights to emancipate their slaves, to capture 
and ^sequestrate their property, and to exercise all the powers of war 
against a public enemy. 

These views first set forth in conversations with responsible officers 
of the government, were subsequently incorporated in his work on 
War Powers under the Constitution of the United States, — a work 
which contributed more than any other single agency to the solution 
of many of the difficult questions arising in the course of the war. 
It >va8 written at a time when the strain and pressure upon every 
point of our constitutional fabric was intense, and when all existing 



and long-accepted rules of construction were found to be lamentably 
unequal to the exigency. The task which he assumed requu'ed 
peculiar and accurate knowledge, — knowledge of legal principles as 
wdl as of the history of the country, — and courage of no common 
order. But he entered upon it without flinching, and pursued it with 
characteristic vigilance and fidelity to the end. 

The early editions of the work on the war powers of the govern- 
ment were adopted by the president and the departments as an au- 
thority on the questions treated in it ; and new editions followed as 
rapidly as new questions called for examination and decision. The 
value placed upon it is best attested by the remarkable fact that 
within a period of about eight years forty-three editions were printed, 
— ^ten in Boston, thirty-three in New-York ; and that in the mean- 
time it had been made the basis of volumes of legislation, and its 
leading doctrines had received the sanction of the highest courts in 
the land. 

In November, 1862, Mr. Whiting was requested by the president 
to act as solicitor and special counsellor of the war department. Civil 
suits and criminal prosecutions were pending, in many parts of the 
country, against military officers and other persons for arrests made 
under orders from Washington. It was a part of the duty assigned 
to him to instruct counsel employed in such suits, in order that some 
uniformity of practice might be secured, and the rights and dignity of 
the government preserved. As time went on, suits multiplied, in- 
volving men in high position. Treason reared its head in many 
shapes and in many places in the northern or border states. At- 
tempts were made by adroit and reckless men to bring the judicial 
power of the states into collision with the military forces of the union. 
Mr. Whiting's Essay on Military Arrests in Time of War was pre-^ 



8 

pared for this emergency, and became the guide of the law officers 
employed by the government in prosecutions of this kind till the close 
of the war. 

The office of solicitor of the war department was created by statute 
in February, 1863, and Mr. Whiting was formally appointed at that 
time, though there was no change in the relations he already held to 
the department. This office he filled till the war was over (April, 
1865), when he resigned. No successor was appointed; and the 
law was repealed the following year. 

Although Mr. Whiting believed and acted upon the belief that 
every man should receive full compensation for his work, he never- 
theless declined all payment for services rendered to the government 
during the war. He looked upon this in his case as a patriotic duty ; 
and without setting up his own action as an example to others, or 
making any pretensions on account of it, he was content that, if his 
counsel at such a time was of any value, the country should remain 
his debtor. 

Besides the great questions already mentioned, it became necessary 
during this period (1862-5) to settle many new principles bearing 
upon the return of the rebellious states to the union, their provisional 
government by military power, the claims of the freedmen upon the 
general government, and the claims of -citizens against the United 
States growing out of the war. On all tliese questions Mr. Whiting 
was not only the confidential counsellor of the president^ and secretary 
of war, but he was in almost constant communication with the heads 
of committees and the leading members of congress in relation to the 
constitutional and practical questions affecting the great body of 
wholly unprecedented legislation required by the new order of things. 
That so great a revolution, reversing the traditions and the social 



order of more than two hundred years, could be practically accom- 
plished in so short a time, and with so little disturbance to the peace 
and prosperity of the country since the war was closed, is owing in 
no small degree to the counsel which Mr. Whiting, as one of the 
chief law-officers of the government, gave at the threshold of legisla- 
tion in regard to it. As our armies vindicated the unity of the 
country against its foes in the field, Mr. Whiting vindicated the suf- 
ficiency of the constitution as a legal bulwark against the narrow and 
false constructionists who would have left it powerless imder the feet 
of armed rebellion. In all his work at this time the distinction be- 
tween legal rights in time of peace and legal rights in time of war is 
very clearly made, and the discussion of principles applicable to each 
period is elaborate, accurate, and convincing. It covers ground 
equally important and unexplored, and is an achievement which the 
nation can hardly value too highly. 

Since Mr. Whiting^s resignation as solicitor of the war depart- 
ment, the government has had frequent occasion to avail itself of his 
services in important suits pending against it. 

Though deeply interested in politics and public afiairs, as we have 
seen, and not unfamiliar with the ways by which in our times offices 
are won and lost, Mr. Whiting was very rarely a candidate for poli- 
tical office. His professional engagements, and we may say also, 
his professional ambition, kept him long from entering that stormy 
arena, where success is so often attended with very doubtful honor. 
His first public service of a purely political character was rendered in 
1868, when, as a presidential elector for the district in which he re- 
sided, he gave its vote for President Grant. In 1872 he was 

nominated by the republicans of the same district, and was elected as 
2 



} 



10 

its representative in the Forty-third Congress, succeeding the Hon. 
Ginery Twichell. To the responsibilities and duties of this position 
he had looked forward with confidence, and with well-grounded hopes 
of still greater usefulness and distinction. His ambition in his chosen 
profession had been abundantly gratified, and it was an agreeable 
change which opened to him a more conspicuous, if not a more honora- 
ble career. His quality of mind and his severe and life-long training 
would have enabled him to take no common rank in the new tribunal 
to which he had been chosen. His neighbors and constituents, with 
many of whom he held relations of closer personal intimacy than are 
usual between people and their representatives, also felt that they had 
every reason to look forward to his service in the councils of the 
nation as one that would not only bring increase of fame to him but 
would reflect honor upon themselves ; and they lamented his loss as 
that of a statesman who had just failed to enjoy the public recogni- 
tion he had fairly earned ; of a patriot sincerely and honestly devoted 
to the country's interests ; of a legislator of ripe talents and rare 
capacity for public work ; and a citizen pure, upright and incor- 
ruptible in all the relations of life. 

In the intervals of his professional and public labor, Mr. Whiting 
took an active interest in historical and antiquarian studies, and was 
a generous contributor. to societies devoted to these objects. He was 
president of the New-England Historic, Genealogical Society from 
1853 to 1858 ; corresponding member of the New- York Historical 
Society ; honorary member of the historical societies of Pennsylvania, 
Wisconsin, and Florida ; and corresponding member of the Phila- 
delphia Numismatic and Antiquarian Society. To all these societies 
he contributed liberally the results of his investigations, and their 



11 

annals bear abundant witness otherwise to his active and intelligent 
interest in their work. His address before the Historic, Genealogical 
Society in January, 1853, upon entering on the duties of the presi- 
dency, was in the true spirit of the genealogist and antiquary, and 
marked out an heroic outline of work which the society has since, ac- 
cording to its means, endeavored to execute. 

Among his own books, which cannot be overlooked in a notice of 

• 

this kind, is his "Memoir of the Rev. Samuel Whiting, D.D., and 
of his wife Elizabeth St. John ; with references to some of their Eng- 
lish ancestors and American descendants," — a beautiful volume, 
printed but not published, which merits a very high place in the roll 
of New-England biographies. The same persistent and unsparing 
labor which he gave to his profession, he also gave to the literary 
work to which he was fond of resorting by way of diversion. His 
occasional addresses always bore the results of original thought and 
of careful and patient execution. A striking example of this is his 
last literary address before the combined societies of Colby Univer- 
sity, in July, 1872, on the Laws and Conditions of Intellectual 
Power. He received at that time the honorary degree of Doctor of 
Laws from the government of that university. 

This brief sketch would be incomplete if it omitted reference to 
the felicities of Mr. Whiting's home. It was there he found the 
quiet and solace without which his delicate physical organization 
could never have borne the exacting strain of his long and unremit- 
ting labors. There also was his study, where his successive cases re- 
ceived that thorough consideration and preparation which established 
his fame as a lawyer, and where the written or printed arguments 
in each case are now preserved. There, too, may be seen, within 



12 

and without, abounding evidence of his remarkable industry and 
pure taste, which made every inch of his grounds contribute to the 
general effect he sought, and filled every niche in his house with 
objects of interest and beauty. 

His public spirit prompted his support of all deserving objects in 
the community of which he was for so many years a member. 
He was among the earliest advocates of the union of the muni- 
cipalities of Roxbury and Boston. He showed by his acts in many 
striking instances the deep interest he always felt in young men. 
The extent of his private giving will never be known, if it were de- 
sirable. It is enough that few worthy objects ever called in vain upon 
him. By his will he left five thousand dollars to Harvard College 
for a scholarship, and to the free public library in his native town 
one thousand dollars. 

In a profession so absorbing as the law to those who fill its high 
places, little leisure is usually found for wide general studies, outside 
of its absolute requirements ; but to meet these in accordance with 
Mr. Whiting's standard, and as he met them, there was necessary a 
good acquaintance with many departments of science. It may be 
truly said that he was rarely wanting in precise information on all 
the points of his large practice. When the great struggle of his 
time came, his sympathies and studies had fully prepared him for it, 
and he gave to the national cause a support as efiScient and unselfish 
as that of the best and bravest. He had the full confidence of Mr. 
Lincoln, and few men held that providential leader in profounder 
veneration. In his religious belief Mr. Whiting was a Unitarian. 

Mr. Whiting died at his house on Montrose Avenue, Roxbury, 
on the 29th of June, 1873, aged sixty years. He had been confined 



13 

within doors but a few days, and his illness had excited no appre- 
hensions. Late in the afternoon of that day, while resting quietly on 
his pillow, he was seized with sharp pains about the heart, and expired 
in a few moments. 

He was married in October, 1840, to Lydia Gushing Eussell, 
daughter of the Hon. Thomas Russell, of Plymouth, who with three 
children survives him. 



WORKS OF MR. WHITING. 

1. Argument Boston Gas Light CompaDy vs. William Gault. Bos- 
ton, 1848. 8vo. pp. 55. 

2. Argmnent in the case of Elias Johnson ei aL vs. Peter Low et aL 
Boston, 1848. 8vo. 

3. Report of the Committee in Favor of the Union of Boston and Box- 
bury. Boston, 1851. 8vo. pp. 35. 

4. Speech before a Committee of the Legislature of Massachusetts on 
the Destruction of Boston Harbor. Boston, 1851. 8vo. pp. 80. 

5. Argument in the Supreme Court of the United States in the case of 
Brooks vs. Fiske et aL (case of Wood worth Planing Machine Patent). 
1852. 8vo. pp. 87. 

6. Argument in the case of Boss Winans vs. Orasmus Eaton et aL be- 
fore the Circuit Court of the United States for the Northern District of 
New- York (on the patent for the eight-wheeled car). 1853. pp. 165. 

7. Address delivered to the members of the New-England Historic, 
Genealogical Society, on assuming the office of President. Boston, 1853. 
8vo. pp. 16. 

8. Memoir of the Rev. Joseph Harrington. Boston, 1854. 12mo. 
pp. 64. 

9. Argument before a Committee of the Legislature of Massachusetts 
in behalf of the Renionstrants against the erection of a Bridge across Chelsea 
Creek. 1854. 8vo. pp. 29. 



14 

10. Argument in the case of interference between Farley and Allen 
(the Volute Spring Steam Guage). 1858. 8vo. pp. 102. 

11. Twenty Years' War against the Railroads: a Letter to the Hon. 
Erastus Corning. 1860. 8vo. pp. 29. 

12. Closing Argument in the Supreme Court of the United States in 
the case of Ross Winans vs. New-York and Erie Railroad. 1860. pp. 116. 

13. The War Powers of the President and the Legislative Powers of 
Congress in Relation to Rebellion, Treason and Slavery. Boston, 1862. 
8vo. pp. 143.' 

14. The Return of the Rebellious States to the Union ; a Letter to the 
Union League of Philadelphia, 1863. 8vo. pp. 15. 

15. Military Arrests in Time of War. Washington, 1863. 8vo. pp. 59. 

1 6. Opinions on " Slavery," and " Reconstruction of the Union " as 
expressed by President Lincoln. With brief Notes. 1864. 8vo. pp. 16. 

17. Military Government of Hostile Territory in Time of War. Bos- 
ton, 1864. 8vo. pp. 92. 

18. Argument in the Grcuit Court of the United States in the case of 
Union Sugar Refinery vs. the Continental Sugar Refinery. Boston, 1867. 
8vo. pp. 190. 

19. Address before the Boston Highlands Grant Club, August 5, 1868. 
Boston, 1868. 8vo. pp. 44. 

^ A friend has ftirnished the foUowiag memoranda relative to the several editions of Mr. 
Whiting's " War Powers." 

First edition, published by John L. Shorey, Boston. 1862. 

Second edition, by same, with preface by author. 1862. 

Third edition, not found. 

Fourth edition, published by Shorey, for the Emancipation League. 1863. 

Fifth edition, not found. 

Sixth edition, by Shorey, for the Emancipation League. 1863. 

Seventh edition, with Appendix. Shorey, 1863. 8vo. pp. 151. 

Eighth edition, with essay on " Military Arrests in time of War," and Letter to the Union 
League of Philadelphia on the Return of the Rebellious States to the Union. Shorey, 
1864. 8vo. pp. 263. 

Tenth edition, with << Military Arrests," Return of the Rebellious States, or, as it was 
then called. Reconstruction of the Union, and *' Military Government in Time of War." 
Little & Brown. 1864. 8vo. pp. 342. 

Forty-third edition, Lee & Shepard, with addition of " War Claims of Aliens," «* Opin- 
ions of the Supreme Court," and; *' Notes " and Appendix. 1871. 8vo. pp. 695. 

Editions of this work were issued also in Washington, Philadelphia, and New- York, and 
one at least was printed for foreign distribution. 



15 

20. Address on the Constitutionality of the Reconstruction Laws. 
Oct. 13, 1868. [Boston Daily Advertiser, Oct 14, 1868.] 

21. Argument in the case of Crowell vs. Sim et al. 1869. pp. 34. 

22. Argument in case before the Circuit Court of the United States for 
New-York, in the case of Rumford Chemical Works vs. John E. Lauer. 
1869. pp. 78. 

23. Argument in case of The City of Chicago vs. George T. Bigelow, 
administrator, &c., appellee. Boston, 18 6Q> 8vo. pp.57. (Not delivered.) 

24. Argument before Hon. George S. Hillard, Master in Chancery. 
Union Sugar Refinery vs. Francis O. Matthiessen (rule in equity as to 
costs). Boston, 1869. 8vo. pp. 120. 

25. Argument before the Commissioner of Patents in behalf of Capt. 
Prince S. Crowell. Boston, 1870. 8vo. pp. 114. 

26. Letter to the Hon. Henry Wilson on the Pacific Railroad. 1870. 
8vo. pp. 7. 

27. Argument in the Circuit Court in the case of James S. Carew et <d, 
vs. Boston Elastic Fabric Company. Boston, 1871. 8vo. pp. 107. 

28. Memoir of Rev. Samuel Whiting, D.D., and of his wife Elizabeth 
St. John. Boston, 1872. 8vo. pp. 334. [Fifty copies. Second edition 
1873, pp. 334, two hundred copies. Neither edition was published, both 
being printed for private distribution.] 

29. Argument in the Circuit Court of the United States for New-York 
the Union Paper Collar Company vs. Ward. 1872. pp. 850. 

30. Argument in the Circuit Court of the United States for New-York : 
the Rumford Chemical Works vs. Hecker et al. 1872. 

31. Address before the Boston Highlands Grant and Wilson Club, 
September 16, 1872. 8vo. pp. 45. 

32. Address before the Combined Literary Societies of Colby Univer- 
sity, July 22, 1872. Boston, 1872. 8vo. pp. 24. 



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